State v. Tuttle

2002 SD 94 Dakota, Plaintiff

STATE оf South Appellee, TUTTLE, Defendant Thomas John Appellant. No. 22025. Dakota. Court South 2002. April Considered Briefs July Decided

KONENKAMP, Justice. po- The defendant was taken into custody During inter- questioning.

lice rogation, the detective threatened that the cooperate would defendant’s failure to police report, suggesting noted in the guilt might refusal to admit result person can- harsher treatment. Because foregoing not be coerced into Fifth right, Amendment and because this threat confess, plainly caused the defendant to conclude under of circum- stances that the confession was obtained involuntarily suppressed. should We reverse and remand for a new trial. A.

Background After at a having [¶ 2.] several drinks party Monday, Thom- October as John Tuttle and his friend Bereket Emehezian drove to the residence of grandmother, a Tuttle’s mobile home at Court, the Park View Trailer in Sioux Falls, South, arrival, Dakota. Soon after got argu- Tuttle and Emehezian into an ment. A match shoving ensued. Various residents of the trailer court came out to separat- watch. One of them succeeded in two, ing whereupon got Emehezian into car sped away. his Tuttle chased him on foot as far as the entrance and then grandmother’s walked back to his home. afterwards, Shortly law enforce- ment officers arrived on the scene to inves- unusual, tigate. Finding nothing they preparing were to leave when Tuttle’s grandmother approached the officers and Barnett, General, Attorney Mark Frank requested they eject people some she General, Geaghan, Attorney Assistant did not want in Upon entering her home. Pierre, plaintiff and appellee. trailer, her the officers found Terrance Paul E. Pietz of County Minnehaha Pub- Yellow Earrings, leaning against the kitch- Office, Falls, sink, lic Defender’s bleeding profusely. Sioux for de- en There was appellant. fendant recently paring washed knife the sink. have to Tuttle’s bly acquittal. and Tuttle’s led Earrings to Yellow In addition three oth- appeal, the officers found denied motion. court On grandmother, (1) trailer: Tuttle’s mother people in the following er Tuttle raises the issues: Did - (the Earrings), and of Yellow girlfriend admitting the trial court err in into evi- (2) Tuttle himself was Tuttle’s two uncles. police? dence his statements to Did trailer, up against a leaning outside trial err in admitting court into evi- vehicle, After the officers arrived. when dence a knife found at the scene of the Earrings received first aid frоm Yellow in deny- crime? Did the trial court err officers, to the he was taken ambulance ing his motion for a new trial? A medical examination revealed

hospital. wounds. that he had sustained eleven stab B. found in the people None of the Miranda Waiver to know who had commit- trailer claimed stabbing. Accordingly, ted the Tuttle moved to suppress Tuttle, all, in for took them as well as he made during interroga statements by De- interrogation Under questioning. (a) tion on the he grounds did Openhowski, Thaddeus Tuttle ad- tective (b) rights, waive his Miranda his ad Earrings having stabbed Yellow mitted involuntary. missions were The circuit charged ag- Tuttle was three times. court his motion. Tuttle argues denied 22- gravated assault violation SDCL that the court committed reversible error 18-1.1(2). trial, Yellow Ear- jury ruling. give pure deference to so We only eyewitness testified rings was the who findings questions fact on such as whether No one identity on the of his assailant. actually proper warnings given, appeared present during else the assault ruling but we review de novo a trial court’s of During witnesses. the course as whether a defendant question emerged that Yellow Ear- testimony, knowingly, intelligently, voluntarily and trial, was, at the time of incarcerated rings rights. Stanga, Miranda State v. waived tampering of with a witness charge on a ¶ 129, 8, 486, 2000 SD 617 N.W.2d knife paring in this case. The involved evidence, admitted into over defense moves was When defendant [¶ 7.] objection. jury guilty. found Tuttle suppress during taken a cus statements years him to six The court sentenced interrogation, the trial court must todial penitentiary, noting relatively that this presence of hearing conduct a outside punishment appropriate was light trial. jury, preferably before SDCL (eighteen) prospects and his age hearing, prosecution In 19-9-9. rehabilitation. voluntarily, show that the defendant must waived Mi knowingly, intelligently and sentencing, After Tuttle moved Arizona, v. rights. randa See Miranda trial, that fresh evidence arguing for a new 1628, 436, 475, 1602, 16 86 S.Ct. 384 U.S. mother, arisen, namely that Tuttle’s had (1966). 694, 724 For a waiver L.Ed.2d Carol, Earrings Yellow and had assaulted determination, consider a a court should inflicted stab wounds once before and had intelligence, age, experience, defendant’s question, after the here in and once assault familiarity background, including surrounding that the circumstances those justice system, as' well as the criminal sufficiently were similar incidents Fare v. mental condition.1 proba- physical their admission into evidence to be ages, and intoxication is another factor consuming bever- 1. Tuttle had been alcoholic 26 724-25, terson, 813, 815-16, G, 707, 821 442 99 S.Ct. 924 F.2d

Michael U.S. (1979). (9thCir.1990) (valid 197, 2560, 2571-72, 212 waiver because written 61 L.Ed.2d signed rights waiver after Miranda were prove a The State must 8.] explained though three or four times even rights only by pre waiver of Miranda years was sixteen old with a low defendant ponderance evidence. Colorado of the See Hack, 862, I.Q.); v. 782 F.2d 866 U.S. 157, 168, Connelly, v. 479 U.S. 107 S.Ct. (valid (10thCir.l986) waiver when each de (1986) (re 473, 515, 522, 93 L.Ed.2d signed fendant two different Miranda versing higher standard Colorado’s “usually express waivers because waiver is evidence). convincing It is re clear proof validity of that waiv strong now, under the recent decision solved er”). addition, partially suspect may States, v. that Miranda Dickerson United waive Miranda Connecticut v. requirement, constitutional re federal Barrett, 523, 529-30, 479 U.S. 107 S.Ct. viewable under federal standards. (1987). 828, 832, To 93 L.Ed.2d 2326, 2329, 147 U.S. 120 S.Ct. waiver, prove a show valid the State must (2000). Therefore, L.Ed.2d we (1) relinquishment of the defen longer higher will no hold the State to a rights voluntary dant’s proof the federal constitu burden under fully defendant was aware that See, Faehnrich, e.g., tion. State v. being waived and of the conse (S.D.1984) (imposing be N.W.2d quences waiving them. Moran v. Bur standard). yond-a-reasonable-doubt bine, 475 U.S. 106 S.Ct. express An waiver is necessary, pre a waiver сannot be question On the whether from a con sumed defendant’s silence or knowingly, intelligently, and volun Miranda, fession alone. tarily quote waived his Miranda rights, at 724. Ex L.Ed.2d passage part the crucial in the initial of his plicitness of a is a factor for consid waiver interview: See, e.g., eration. F.3d Gupta, (D): [Having Detective read Tuttle the (7thCir.l999) (valid 615, 618 waiver be card, warnings Miranda from a asks] signed cause defendant written waiver and you rights? Do understand these repeated his statement twice after Mi (T): rights randa v. Re given); Derrick Tuttle Yeah. considered in the of the circum much or when that occurred or whether or stances, both on waiver and voluntariness. not he was under time.” the influence suppression hearing, Open- In the Detective simply The court concluded that "there is no howski "It testified that was obvious to me he suggest consump evidence to that the alcohol drinking probably had been and he was intox tion in this case overcame or affected his icated at the time....” it But is unclear ability rights to his constitutional understand referring whether the detective was to the rights.” say or waive those We cannot stabbing time of the incident or the time of finding clearly factual court's was errone contrast, the interview. In at triаl the detec viewing taped interrogation ous. In our during tive testified that the interview. "I selves, appears it that Tuttle was coherent and

believe was that he under the influence of See, responsive during e.g., questioning. intoxicated, Legally say alcohol. I can't Schwensow, (7th 151 F.3d Cir. Accordingly, that.” the circuit court found 1998) (valid waiver because court did not find respect interrogation with to the that "al impaired by defendant effects of withdrawal though testimony [Tuttle] there is some drug anti-depressant alcohol or at time from consuming beverages had been alcoholic ear interview). evening, lier in the it's uncertain as to how just rights get to waive T: I want to the hell you D: Do wish these out of at this time? here. and talk to me you get D: can' hell out of So here.

T. No. OK; let go put me this card away. No, to talk D: what? You don’t want In colloquy, to me? this Tuttle states he does not want to waive he does but rights, rights. T: I to waive the don’t want Thus, talk wish to with the detective. rights? D: You want to waive the point, was unclear whether Tuttle’s talk; you T: No. want let’s You said to refusal to waive Miranda rights amounted talk. unequivocal to an invocation OK, cuz, Well, me, me, let D: OK. let rights. that, yeah, you I under- understand later detective testified on your rights, stand correct? exсhange: “During reading T: Yeah. Miranda warnings saying [Tuttle] you rights D: Do to waive wish these ‘no,’ I think he wanted to talk. He and talk at this to me time? understanding question- was not the exact ing.” The trial court found that all No, “[a]t T: no. the defendant expressed willing- times D: You don’t want to talk to me? ness, desire, even to talk to the Nah, my T: I want to don’t waive happened.” about what had But Tuttle’s I rights. ‍‌​‌​​‌‌‌​‌​‌​‌‌​‌‌‌​​​‌‌‌‌‌​‌‌‌‌​‌‌​‌​​‌​‌​​​‌​​‍you I want to talk to so can willingness or desire is not equiva- to talk get of here. the hell out understanding lent to an talking to here, getting D: OK. We are confused the detective was tantamount to renounc- words, if want you OK? other don’t Fifth ing his Amendment On this me, say, to talk to then “I don’t want “Certainly, aspect, the detective testified: you.” you to talk to But to want any if I I had indication that didn’t think means, your “yes, waive which rights, talk, certainly he I wanted would not that, I I understand all but do want Whether have interviewed him.” talk you,” you say, then have to talk necessary, wanted to is a but not a I talk “yes, you.” want sufficient condition for waiver: waiver say, “I you T: How do I want to talk to knowingly intelligently.2 must be made so I here”? get can hell out of If the invocation of Miranda you, you D: OK. do waive So wish to rights ambiguous or equivocal, Unit- you these and do want to talk ed has held that States Court to me at this time? See questioning permissible. further is T: Yeah. U.S., 452, 459, Davis v. 512 114 S.Ct. 2350, 2355, 362, go, D: 129 you you’re, There that’s what L.Ed.2d of invocation of Miranda you’re what to you (clarity rights sure that’s want is Davis, determination). do? objective an the upon particular 2. As the ex the and United States Court case facts circum- Arizona, case, plained in Edwards v. waivers of surrounding including stances the rights Fifth after warn Amendment Miranda background, experience, conduct of the ings given only have been "must not be volun 1880, 451 U.S. 101 S.Ct. accused.” tary, knowing but must also constitute a 1884, 378, (1981) (citation L.Ed.2d intelligent right of a or abandonment known omitted). privilege, depends a each matter which (Utah Leyva, State v. whether the statement 951 P.2d Court considered Illinois, 1997) (citing Smith v. lawyer” talk a 469 U.S. I to “[m]aybe should suspect’s right a to to invoke S.Ct. sufficient (1984)). Leyva counsel, approximately an 495-96 Court wrote when uttered an ini- interrogation. ambiguous into Before that with waiver the hour and a half the tial suspect the had been read advisement: questioning, Miranda and indicated that he warnings suspect After an officer has informed rights and to agreed those understood of his Miranda rights and has deter- equivocal held that an talk. The Court suspect the understands mined invoke request for counsel is insufficient to the officer must then deter- rights, those require counsel аnd does not right to suspect willing mine if the to waive interrogators questioning to cease or questions. If rights those and answer seeking to those questions limit further suspect responds ambiguously or Davis, 512 U.S. at clarification. equivocally, the officer must then focus 2355, 129 at L.Ed.2d 371-72. S.Ct. at clarifying suspect’s intent. forcement and invoke subjected standard the circumstances cedural clearly that a obstacles” statement safeguards necessary for effective law en to be a police investigations, custodial reasonable to avoid transforming To request for an attorney.” to counsel would understand the provide into interrogation “wholly “bright “sufficiently irrational officer in person must line” pro Id. at 744 may still the officer has ly totality of the circumstances. to suspect clarify clarify or equivocally, “A continues to (internal be found simple, straightforward suspect’s request properly attempted ^[*] citation a valid after a review of the ^[*] respond ambiguous ^[*] response appropriate.” implied omitted). and the waiver effort We to If Leyva persuasive find Court’s distinc- Id., at S.Ct. equivocal response tion between an to an that, at 371. The Court added L.Ed.2d initial Miranda advisement and an equivo- “it will although required, often be postwaiver Accordingly, cal invocation. police practice” clarify good officers to equivocal when an officer receives an re- Id. suspect’s ambiguous statement. of Miranda sponse reading rights, to the 461, 114 129 L.Ed.2d at 373. questioning the officer must limit to clari- The Davis holding obviously ap fying subject’s response. suspects attempt plies to instances where Did the detective here to invoke Miranda knowing after a properly clarify response? When voluntary waiver of rights. said, “I my don’t want to waive Davis, sum, applies equivocal post- to an rights. I want talk I you get so can rights. waiver invocation of For an initial here,” the hell out of the detective re however, waiver, the State still bears “a sponded: heavy burden to demonstrate that the de knowingly here,

fendant intelligently getting D: OK. We are confused Miranda, Miranda words, waived” you OK? In other don’t 475, 1628, 16 me, at 86 S.Ct. at say, U.S. L.Ed.2d at want to talk to “I then Supreme 724. As the Utah recog you.” Court don’t want to talk to But if nized, waiver of Mi questions of you your rights, “[t]he want to waive randa rights postwaiver means, and of “yes, invocation which I understand all that, are rights entirely separate.” you,” those but I do want to talk to

29 I “yes, response, want In the officers told him that yon say, they have to then with him speak with could not if he wаnted an you.” to talk protested attorney. Pilcher that he I say, you “I want to talk to T: How do story, wished to tell his side of the but the of here”? get so I can the hell out repeated that they speak officers could not you, you D: do wish to waive OK. So with him if speak he wished to with an rights you and do want to talk these attorney. Upon Pilcher’s further insis- at this time? to me tence that he allowed be to tell his side of T: Yeah. story, responded the officers that they prescribed no 16.] There is only agreed could talk he waive to his waiving invoking ritual for or Fifth rights. point, Fifth At that Amendment rights. See North Carolina v. Amendment Pilcher to agreed rights waive his Butler, 369, 373, 1755, 441 99 S.Ct. Minnesota U.S. make a statement. The Su- 286, (1979). 1757, A 292 Mi preme 60 L.Ed.2d Court ruled that had there- Pilcher by from the waived to right randa waiver inferred counsel that he had understanding rights just of the invoked defendant’s before. reflecting course of coupled with a conduct The situation in our case Id., 441 give up rights. desire to those Pilcher,3 similar to Although is 1757, 373, at L.Ed.2d at U.S. at 99 S.Ct. 60 presented detective a com Tuttle with Rhines, 55, 292. See State v. 1996 SD also pound question, to which one-word ¶ 35, (citing 429 United 548 N.W.2d might necessarily ambiguous, answer seem (7th Betts,

States v. 16 F.3d 763 Cir. encapsulated the detective’s question 1994) Fare, 724-25, 442 at 99 (citing U.S. waiving right essence of to remain 2571-72, (1979); 212 S.Ct. at 61 L.Ed.2d at by questions, to agreeing silent: answer Butler, at 99 S.Ct. effectively Tuttle was Miranda waiving his 292)). L.Ed.2d at A under defendant’s circuit court found that Tuttle an standing rights of Miranda essential express any “did not about confusion component inferring “The re to waiver. rights. He indicated he understood quirement warnings and waiver of rights.” experience judges, In our as respect ... fundamental with to prospect cannot be unmindful of the privilege the Fifth Amendment and not Tuttle, jail on recently released from an simply a to preliminary existing ritual assault, aggravated charge other wanted Miranda, interrogation.” methods of manipulate the advisement Miranda U.S. at S.Ct. at 16 L.Ed.2d at i.e., get own process purpose, to suit his jail. viewing taped of the inter out Our Pilcher, perplexed In State v. the defen- that Tuttle was not view reveals dant interrogation rights, stated at outset of about his and we conclude officer, that he an circum thought light he should have attor- reasonable (Minn.1991). stances, ney. by 472 N.W.2d would have understood police-initiated interrogation long 3. Pilcher reason: as the is similar for another so right police “scrupulously suspect’s generally protected to silence is not honor[ ]" rule, requiring per question- choice. se to cеase 96 S.Ct. ing immediately upon explicit request Compare an L.Ed.2d Mos- contrast, n.10, ley, Michigan Mosley, 101-04 & S.Ct. at counsel. 423 U.S. at n.10, suspect Court made that a 325-26 & 46 L.Ed.2d at & n.10 clear 319-21 Edwards, 484-85, response U.S. at who invokes the ‍‌​‌​​‌‌‌​‌​‌​‌‌​‌‌‌​​​‌‌‌‌‌​‌‌‌‌​‌‌​‌​​‌​‌​​​‌​​‍to silence in 1884-85, police questioning may again subject 385-87. 30 ulti- independent an determination of the questions, Tuttle knew

agreeing to answer v. issue of voluntariness.” Beckwith waiving rights. his Miranda mate he was States, 341, 348, 425 U.S. 96 S.Ct. United whole, de we think the On 1612, 1617, 1, (quoting 48 L.Ed.2d 8 intent. clarified Tuttle’s adequately tective Carolina, 737, Davis v. North 384 U.S. voluntarily willingly Tuttle thereafter 741-42, 1761, 1764, 16 L.Ed.2d 86 S.Ct. rights Miranda after agreed to waive his (1966)). 895, of a 898 The voluntariness understanding indicating an depends po- confession on the absence of To hold officers some rights. at overreaching. Connelly, lice 479 U.S. an ex requirement providing higher 170, 523, 107 at 93 L.Ed.2d at 486. S.Ct. explanation of the Miranda warn haustive if, voluntary are not deemed Confessions burden. impose an unrealistic ings circumstances, light totality of the of the 810, Norfolk, 221 Neb. 381 N.W.2d State v. enforcement officers have overborne law (1986). interview, 120, 127 During the fur Haynes Washing- v. the defendant’s will. thermore, responses to the detec ton, 503, 513-14, 1336, 373 83 S.Ct. U.S. well questions indicate tive’s (1963). 1343, 513, 10 L.Ed.2d 520-21 See would be incrimi any knew admission ¶ Frazier, 19, 20, also State v. 2001 SD 622 Considering of circum nating. 246, Smith, (citing N.W.2d 255 State v. applying the Statе’s burden of stances ¶ 352). 83, 36, 344, 1999 SD 599 N.W.2d only by preponderance waiver a showing evidence, uphold the circuit of the proving burden knowingly, that Tuttle court’s conclusion the voluntariness of a is the confession voluntarily waived his intelligently, showing as burden for the volun- same Miranda Connelly, tariness of a Miranda waiver. 169-70, 523, 479 107 at 93 U.S. S.Ct. C. L.Ed.2d at 486. The State must establish of Confession Voluntariness the voluntariness of confessant’s admis ques preponderance turn to the sion of the evidence. [¶ 20.] We Williams, 431, 444, 104 tion whether the confession itself was vol Nix v. 467 U.S. 2501, 377, n.5, untary, keeping validity in mind that the of S.Ct. 81 L.Ed.2d 467 U.S. 431, 2501, 2509, 377, rights a Miranda waiver of and the volun- 104 S.Ct. 81 L.Ed.2d n.5, 431, 2501, separate are tariness of an admission U.S. S.Ct. 377, (1984); 387-88, inquiries.4 Stanga, 2000 129 L.Ed.2d n.5 United parallel SD ¶ (citation Matlock, 164, 178, 8, 617 N.W.2d at 488 omit States v. 415 U.S. ted). 988, 242, n.14, subsidiary Although there are often S.Ct. 39 L.Ed.2d 415 U.S. 242, deference, 988, 996, deserving 39 L.Ed.2d questions factual S.Ct. n.14, ultimately voluntariness of a confession is 94 S.Ct. (1974) (“[T]he Fenton, n.14 legal question. controlling Miller v. 445, 452-53, proof suppression hearings

U.S. 106 S.Ct. 88 burden of (1985). appeal, impose L.Ed.2d than greater 414-15 On should no burden proof by preponderance make evi- we “examine the entire record and Thus, Connelly 4. The L.Ed.2d Court in Colorado once obviously held that no reason to a court concludes that a defendant’s confes- ''[t]bere require way voluntary more in the of a sion was under the Fourteenth 'voluntariness' Amendment, inquiry in the Miranda waiver context than in it follows that the defendant’s voluntary. the Fourteenth Amendment confession con waiver of Miranda was also , opposite necessarily text.” But the true. 169-70

31 (1) ”); 404 conduct of Lego Twomey, v. U.S. ters the law enforcement dence.... 619, 618, creating pressure officials in and 477, 488, 626, the 30 L.Ed.2d 92 S.Ct. suspect’s to capacity pressure. resist that (1972). expressly now abandon 627 We Arizona, 385, 399-401, Mincey v. 437 U.S. State to a prior holding the our standard 2417-18, 2408, 290, 98 S.Ct. suppression hearings.5 in burden higher (1978). factor, 304-306 On the latter we the Court said As United States examine such concerns as the defendant’s Lego: in age; intelligence; level of education and very [Exclusionary rules are much presence any the or absence of advice to deterring by aimed at lawless conduct rights; the defendant on constitutional the it very police prosecution, detention; length of the repeated pro- prosecu- doubtful the escalating longed questioning; nature the use proof suppression in ... tion’s burden of pressure psychological pun- of or physical sufficiently produc- hearings would ishment, as of deprivation such food or pub- in respect outweigh tive sleеp; prior experi- and the defendant’s probative placing lic interest in evidence ence law enforcement officers and the juries purpose arriving for the before “[deception misrepre- courts. or Finally, truthful about or inno- guilt at decisions receiving officer by sentation the state- cence. may ment trial also be factors for the court 489, 626, 30 U.S. at 92 S.Ct. at L.Ed.2d 404 consider; however, may the police use 627. determinations have at Voluntariness psychological interrogating some tactics reliability jury “nothing to do with suspect.” 127, 1996 Darby, State SD verdicts; rather, [they designed to are] ¶ 31, 311, 556 N.W.2d 320. police coercion.” presence determine the A 23.] confession “ob Connelly, at at S.Ct. involuntarily police overreaching tained” 93 L.Ed.2d at 485. moving is the actual cause for confes in cus suspects Once [¶22.] Ross, Hutto v. sion. U.S. of, tody properly agree are advised 202, 203, 50 L.Ed.2d S.Ct. waive, they rights, their Miranda type It must be more than a “but for” freely questioned long interrogators as as causation, “causation in for that sense has through coer do obtain a confession test of never been the voluntariness.”6 police cion. With coercive conduct as Id., at 429 U.S. at S.Ct. “necessary predicatе” finding a defen per at Put from another L.Ed.2d 197. look at involuntary, dant’s admission coercion, spective, even with a con totality of the circumstances under be held been ob fession cannot to have was Connel which the coercion used. See improper by tained the exertion of such influence, ly, unless is the direct cause for inquiry The confession.7 L.Ed.2d 484. factual cen- conduct, virtually beyond standard no statement would be 5. a reasonable doubt course, applies, of to the fact finder’s voluntary people give still deemed because few determination at trial whether an admission incriminating absence statements in the confession made defendant and or some official U.S. v. kind of action." Leon false, is true or whether statement Guerrero, (9th n.l Cir. 847 F.2d Jerke, part. or State v. 73 S.D. whole added). 1988) (emphasis (1949); 38 N.W.2d 874 South Dakota Pattern (Criminal) Jury Instructions 1-14—3. quoted following, 7.We have sometimes confusing, "If the whether a question test was statement test: "the we must rather been the law enforcement have made against particular, initial of would be used him. In 24.] The focus voluntariness is the ef appeal report the detective told Tuttle that his telling him of the detective’s lies things good fect could bе written to make look grandmother that his mother that “I’m gonna for Tuttle or have to write hall” and that both had then “across you’re up you’re cooperating, that not Ear he had stabbed Yellow stated that being jerk a real about it.” In this con- theory the novel rings. Tuttle advances text, it that an admis- is well remember “ “biological amounted to a that these lies voluntary sion is not unless it is ‘the precisely test”: because his lie-detector product of a rational intellect and a free of all the grandmother, mother and his Alabama, will.’” Blackburn v. world, people in the were the ones he 274, 280, 242, 80 by count on to stand him and always could 249 truth, repre the detective’s to tell him the equivalent per sentations were the — The Fifth Amendment “psychological rubber

State v. Falter — provides person ... shall be “[n]o person polygraphed that a faces.8 hose” compelled any criminal case to be a 688, 685, 433, 88 S.D. N.W.2d Const, against witness himself.” U.S. (1975). However, authority no cites Involuntary amend. V. can confessions therefore, theory; the issue of for encompass range, including a broad voluntariness, depends insofar as his claim only types the familiar of coerced state theory, is deemed waived under on that by ments obtained actual or threatened 15-26A-60(6). See v. Pelle State SDCL violence, but also confessions extracted ¶39, 22, 577 N.W.2d grino, 1998 SD psychological ploys improper interroga or authority, from the lack of our 599. Aside techniques tion deemed inconsistent with videotape reveals that these review compelled to be free from self- made little difference false statements instances, incrimination. In some howev the face of Tuttle’s insistence that he did er, promises “direct tell officers would fact, stabbing. In main not commit he prosecutor coop defendant [whether] repeatedly that because his mother tained permissible, promises erated are but girlfriend, expect the victim’s he would officers would see to it that a defendant that she would side the victim. go ‍‌​‌​​‌‌‌​‌​‌​‌‌​‌‌‌​​​‌‌‌‌‌​‌‌‌‌​‌‌​‌​​‌​‌​​​‌​​‍prison cooperate would if he failed to Tapia, are not.” State v. 159 Ariz. argues Tuttle also that his (1988) (citing 767 P.2d involuntary entirely for an United States confession was (9th reason, Tingle, v. namely, receiving different his an F.2d n.n.4-5 Cir.1981)). cooperate Brommel, explicit People po- threat his'failure to In defendant, interrogators' suddenly answer is not whether the state A when faced with the suspect’s] ments were the cause of fession, con machine, [the impersonal accuracy of a whether those statements were so place believe it is safer to confess and him- manipulative they deprived or coercive that mercy self at the the law than to lie to the suspect] ability of his [the to make an uncon any possibility examiner and sacrifice strained, autonomous decision to confess.” leniency. Under such circumstances as this (S.D. Dickey, State v. 459 N.W.2d we find it difficult to that a believe confes- 1990). quotation originally This came from voluntary sion is unless it can be shown the Fenton, (3rd Miller v. 796 F.2d Cir. defendant knows his constitutional 1986), gave authority but the Miller court no and knows that his interest cannot be proposition. for this by exercising harmed 8. The explains: Fatter court 88 S.D. at 227 N.W.2d at 435. suspect Tingle, explained told the unless he court lice (he the distinction injuring encouraging coop- had denied between changed story his threatening eration and coop- failure to daughter) they write “liar” on erate: report judge. to the Cal.2d their

633-34, Cal.Rptr. 364 P.2d Although permissible it is for an interro- (overruled grounds by gating represent, on other Peo- officer to under some Cahill, 478, 494, v. 5 Cal.4th 853 P.2d circumstances that the fact that ple the de- (1993)) cooperates fendant Cal.Rptr.2d will be communicat- I). (Cahill authorities, proper ed to the The court found that this con- the same representation cannot be said implied and an of a that a duct was both a threat to cooperate defendant’s failure rendering will be promise leniency, the confes- communicated prosecutor. to a Refusal sion inadmissible.9 Other decisions have cooperate every Harrison, right defendant’s v. held likewise. U.S. (9th under the fifth Cir.1994), amendment. Under our the court F.3d wrote adversary system justice, criminal a “there are no circumstances in that which may defendant not made to suffer for may suggest law enforcement officers that his silence. Because there no legiti- suspect’s exercise of the to remain a purpose mate for the statement that fail- by result in treatment silent harsher cooperate ure to be reported will and prosecutor.” Applying court or a only apparent objective because its is to principle, the Alabama same coerce, we disapprove making Matthews, parte Ex held that the Court such representations. following suspect comments to a were co- know ercive thrеats: “You there’s two F.2d at n.5. Law enforcement ways to go things, you go about either if agents Tingle told that she refused to cooperate you cooperate, don’t and the inform they prosecu- about would judge you knows that didn’t and the tor that dis- she was “stubborn” and “hard attorney you you trict didn’t or turn headed.” acknowledge, though, knows We you cooperate, you Tingle around did the threats in were far more egre- There, know.... I can than go gious back tell the dis- the one govern- here. attorney, cooperated agents trict ment “the preyed [defendant] with maternal in- or I can tell go me back and the district stinct and fear in a [young] inculcate[d] attorney that did not cooper- [defendant] mother that she not see her would children (Ala. ate me.” 601 52-53 in order to cooperation.” So.2d elicit Id. at 1336. 1992). circumstances, From totality of the misapprehend Tingle 9. The dissenters our citation to 10. Unlike the defendants in and in Illinois, Lynumn cases. Whatever tests these these courts ulti- 83 S.Ct. mately (1963), used to decide a whether coerced con- L.Ed.2d 922 another case in suppressed, interrogators should be by fession fact remains which a threat rendered involuntary, each of those cases the threаts used confession Tuttle had been charged law felony previously (though enforcement were officers coercive. with a employed charges dropped), experi- Those courts then different stan- but later his apply dard than we here determine wheth- ence with the not so courts was extensive that suppressed. expected er the confessions Here, he should could be to know that the threat against use the of circumstances leveled test him could not be out. carried concluding contrary, interrogation that the officer's threat to the On the much of worry defendant caused his involved confession overbore Tuttle's his brother was will, facing rendering penitentiary thus the confession inad- for crime Tuttle did time missible. not believe his brother committed. predictions, the threats were not coercive conduct. Id. at concluded court coercive,” causing “Tingle Moreover, to fear “patently receiving threats from an that, cooperate, she failed to she interrogator distinguished should be from long child for a time.” young not see her having subjective fear that failure to Id. will have consequences. confess adverse P.Z., See State v. 152 N.J. 703 A.2d mak The line betwеen subjectively A created suspects ing simply informing threats and dispositive state of mind is not of their consequences what the natural likely question to be can sometimes be whether the will was overborne acts are narrow, that line must remain distinct. capacity and the for self-determination was they Merely telling suspects should critically impaired. Schneckloth v. Busta consequences of obstruct think about monte, 93 S.Ct. they that if ing investigation, saying the or (1973). 2047, 854, 36 L.Ed.2d cooperate prosecutor the will look do not case, In our the circuit differently, sug or even upon their cases question not address the court did that, cooperate, gesting they unless the voluntariness of Tuttle’s statements in re child victims of their sexual assaults would threat; rather, sponse to the detective’s in testify great to and would suffer be forced fashion, conclusory the court ruled from trauma, Deets, not is coercive. State v. suppression bench at the hearing 183 the 187 Wis.2d N.W.2d Yet, voluntary.11 These remarks are reasonable Tuttle’s statements were findings testimony the 11. The trial court entered oral there is some that he had been issues, respect consuming beverages record with to three Tuttle’s alcoholic earlier in waiver, еvening, the voluntariness of Tuttle’s Miranda the it's uncertain as to how much confession, Earrings' "dying Yellow dec- or when that occurred or whether or not he findings laration.” No written of fact and at the was under the influence time. It entered, of law were and the conclusions would have been better in this case had the proposed We ex- State none. have often police officers administered a PBT or some- written, preference separate, pressed our for thing they'd like that to the defendant so appropriate, specific findings of fact and say certainty able to with some that at the appellate conclusions of law in order to aid place time that the interview took he was [ ] accuracy. promote to v. review and State longer no under the influence or had a .13 (S.D.1992). Flegel, 485 N.W.2d level, but, relatively or some low neverthe- less, simply suggest The dissenters take issue with our statement there no evidence to is ruling consumption that the court’s on the voluntariness of that the alcohol in this case conclusory. ability The overcame or affected to under- Tuttle's confession was trial his question rights remarks on the of voluntari- stand his constitutional or waive сourt’s rights. ness are as follows: expressed freely all times the defendant I conclude that the defendant [A]t desire, gave up willingness, voluntarily attorney to an even a to talk to the police happened. po- silent and talk with offi- about what had and cers, remain the case, lice, Suppress as far as I’m concerned in this and the Motion to the state- legitimate police used tactics. In an inter- ment is denied. okay, reading view it is as I read the cases that I A candid of these remarks shows that recently, police following points: addressed the have read for to tell small the trial court (1) interrogation provided supposed willingness, in their the defendant’s even lies desire, (2) they police; those aren’t so serious that overcome to talk with the small lies defendant, told; (3) partic- possibility the will of the and in this that the told, being impaired that were that Tuttle have been because ular case the small lies mind, by consumption point my do themselves do that. of his of alcohol. The first not simply conclusory: the court made no ref- The defendant had sufficient education to Although erence to the threats the officer made if the be able to understand his imaginable, worst surrounding the factual circumstances threat but our to the detective are not Tuttle’s statements Court has “held inadmissible even con- dispute. Only question legal whip fession so secured mild a as the Exactly what before us. refusal, circumstances, voluntariness under certain to al- the threat that the made? detective low suspect to call his wife until he interview, from quote again To Malloy confessed.” v. Hogan, U.S. detective’s second alternative was: “I’m 7, 84 S.Ct. you’re

gonna up have to write it not Haynes Washington, (citing you’re jerk real cooperating, being a about L.Ed.2d 513 message was, if it.” The unmistakable (1963)). confess, report then the refused facts, Reviewing 31.] relevant would written to the authorities dis- following conclude that the weigh favor leniency, meaning Tuttle courage any Tuttle’s adjudging voluntary: statement severely suffer likely more there was no evidence Tuttle lacked confessing. This was coercive. The video- sufficient or intelligence education to un- reveals, tape of interview without him; derstand open the alternatives doubt, threat occa- detective’s length of his detention was than an less Tuttle, guilt: sioned admission hour; questioning, though somewhat already point, responded at that weeping reрetitious, not prolonged through was I to it with these words: stabbed “OK. sessions; he physical several did not suffer him. Whatever. Shit.” deprivation. punishment or theOn other said, 30.] As we have it is [¶ hand, following we that the find factors not to show that threats were enough weigh against finding his statement volun- to It must made induce confession. also tary: in custody interrogated he was and the totality be shown in of circumstances a.m.; holding in cell 2:30 was under he that the will suspect’s was overborne and alcohol; the eighteen influence of he was overreaching police that the conduct was time; at the he was deceived state- about causally related to the A sus confession. and, eyewitnesses; explained of ments as pect’s will if is overborne the confession is earlier, subjected implied he was to an product not the of a and uncon free threat of if he consequences more serious strained choice. Tuttle’s demeanor and guilt. refused to all these Weighing admit response tape as we viewed it on"the dem elements, holding the the scale tilts toward onstrated the threat its mark. that found involuntary. confession Connecticut, See Culombe We the trial [¶ conclude that 32.] S.Ct. (1961). finding court in that state erred messаge 1057-58 clear: thus, and, given voluntarily ment was cooperate pay to faded he would that, circum consequences; he would treated rule under be less case, in favorably. Concededly, this was not the stances this the statement inad- cooperate. give defendant to The second are to to the trial court's find- failed deference point “psychological to Tuttle's refers rubber ing of Our of review voluntariness. standard theory, reject hose” which we here. Neither novo, only is de see general principles, not of those nor third addresses the concern ¶ 20, supra, also because we the same but had explained length, namely, that we have videotape opportunity to review noncoop- threat to whether reveal Tuttle's defendant's statement as the trial court. eration elicited confession. important point out It is also implying dissenters are incorrect in that we harmless, we reverse and remand for a may legiti- in evidence. Police missible suspect cooperation will trial. need not reach the second mately tell new We may and appeal on to the authorities and third issues. passed leniency, the likelihood increаse Reversed and remanded for a prosecutor or threatening to inform the trial. new cooper- suspect’s refusal judge Fifth Amendment ate violates AMUNDSON, Justice, concurs. forget must never remain silent. We suppress involuntary courts GILBERTSON, Justice, the reason Chief confessions is ZINTER, Justice, and SABERS part part. to extract them offend in in the methods used concur dissent principle in the enforce- underlying an (concur- GILBERTSON, Chief Justice criminal ours is an ment of our law: that part dissenting part). in ring accusatorial, inquisitorial, and not an system which the State I would abandon system [¶ 38.] —a guilt by evidence inde- “totality must establish traditional of the circum- Court’s secured, freely pendently and per stances” test favor of a se rule coercion, not, prove charge its involuntary all would render statements against an accused out of his own mouth. they appear when to result from what the subjectively perceives to be a defendant Richmond, Rogers v. threat. There is a clear distinction be- 735, 739-40, 5 L.Ed.2d 760 making promises tween threats or false 33.] Admission of unlawful simply coerce a defendant’s confession and obtained, coerced, confessions can ly even apprising the defendant of all the facts so Stanga, hаrmless error. sometimes that he make his decision of whether ¶ 1, 129 at 617 N.W.2d at 2000 SD cooperate in a knowing intelligent to omitted). (citation An erroneously admit manner. a significant There is also differ- involuntary confession will not man ted remaining lying ence between to silent if untaint there is sufficient date reversal suspicion. Accordingly, to alleviate guilt prove to the offense evidence of ed I would affirm the trial court’s admission a reasonable doubt. Arizona v. beyond Tuttle’s of statement. Fulminante, 279, 296, 306-12, 111 499 U.S. 1257-58, 322- inquiry S.Ct. The essence of this admission of whether, The Tuttle’s state under the the circum- of stances, not harmless error because ment here was by Tuttle’s confession was coerced evidence, including testimony the other the officer’s statement. This Court claims victim, overwhelming, from the was not the officer overcame Tuttle’s will when he cannot, given credibility issues of “I’m gonna informed Tuttle have to write prove to jury, guilt for the be said Tuttle’s up you’re cooperating, you’re it that not beyond However, a reasonable doubt as a matter of jerk being a real about it.” ¶ 20, Stanga, law. 2000 SD 129 at 617 Court takes this statement out of context. Cf. (citation omitted). N.W.2d at 491 comment, response The officer’s entire repeated to Tuttle’s denials he had [¶ 34.] Since conclude that the State anything stabbing, to do with the was as has not met its burden a proving follows: preponderance evidence T.J., problem okay. Tuttle’s confession voluntary, was and the O: Here’s problem. admission of his at trial not Here’s the And this is—I confession 115, 117,100 any I can’t ya Apfelbaum, can’t make deals. make States any way But is the ya promises. L.Ed.2d gonna happen, okay. Everybody it’s (holding “proper invocation of the Fifth know, I don’t think that’s there —You privilege against Amendment compulsory get you in big conspiracy there’s a self-incrimination allows a witness to re trouble, okay. But the facts are the silent, main falsely.”). but not to swear happened. I can it facts as what write Moreover, a 41.] defendant cannot up ways. say I one or two can T.J. be said to made a knowing, intelligent have guy. up doesn’t like this He’s beat his and voluntary being ap- decision without mother, problems.’ he’s caused a lot of prised consequences of his actions. reasons, ya And for whatever accidental- See, Deets, e.g., 523 N.W.2d at 183. In ly guy. gonna stabbed this Or I’m have Deets, the held: court up you’re cooperat- not write when, [C]oereive conduct does not occur ing, you’re being jerk a real it. about here, officer, as аn without promising I Okay, T.J.: stabbed him. Whatever. leniency, a tells defendant that if he or Shit. cooperate she prosecutor does not threat, officer’s statement was not will upon differently. look the case In which overcame will to Tuttle’s free re- case, either officer nothing does oth- main silent.12 predict er than what prosecutor will First, Tuttle’s claim he was do, making promise without one way threatened more punishment severe ‍‌​‌​​‌‌‌​‌​‌​‌‌​‌‌‌​​​‌‌‌‌‌​‌‌‌‌​‌‌​‌​​‌​‌​​​‌​​‍or the other. he exercised his Fifth Amendment Deets, Id. the court determined the plausible. not He could not have under- detective’s statement was “a reasonable report- stood the officer’s comment about prediction,” penalty.” and “not threat of ing failure to cooperate pun- as Likewise, Id. at exercising ishment for n.2. the officer’s right remain opinion silent. statement herein “the natural conse- acknowledges This Court’s already voluntarily quences” cooper- that Tuttle had of Tuttle’s choice waived officer, ate no influenced speaking to the well doubt his decision to subject confess, before the operated statement was made. it could not have context, In merely the remark a retroactively was wаrn- to induce waiver Tuttle’s of ing consequences right of the Tuttle if to he his to remain silent. Nor could this police.13 were apprisal to lie to the There is overly no be deemed coercive. See protected lie, Ballard, Fifth right Amendment to v. F.2d United States (5thCir.l978) only a to right proper, remain silent. United (holding it Moreover, exchange place 12. only fighting happened. this took with another man when it twelve after the read minutes officer Tuttle a Finally, when confronted with the statements warning. Miranda grandmother, of his and mother Tuttle lying they protect Terry claimed were to be- First, Terry's when confronted state- boyfriend." cause he was "Mom's After em- him, ment that Tuttle had stabbed Tuttle phatically repeatedly claiming he and had Terry maintained could not be trusted. Tuttle nothing stabbing, the to do with the officer previously claimed that when his mother had yourself jam got said “You've in a here. Terry, Terry stabbed had lied result- to being you You're not honest with me ing in Tuttle's brother's incarceration. Tuttle fact, know it.” Tuttle to In waived his thing happening declared the same was to only mistakenly remain silent because he be- Next, him. avowed he could not have way lieved he could lie his of trouble. out stabbing done the because was he outside circumstances, fully rights being that to the aware “tell[ ] certain under in a noncoercive manner appellant consequences waiving and of the of waived expected penalties.”); Com- realistically (citation omitted) added). (emphasis them.” Damiano, Mass.App.Ct. v. monwealth fact, The has shown the State neither. (noting 441 N.E.2d simply that record shows the defendant (in coercion the sense degree “a certain of police department out of get wanted to the pressure) is psychological or emotional of at least five times he did stated any system per- which endemic asks rights. to waive his Miranda The want rights in to be forgo certain order son officer knew he was confused about under- penalties.”). certain spared advantage and took standing ruling Finally, today’s will have 42.] [¶ detailed facts and the {See situation. upon ability effect of law chilling opinion). in majority cited cases confessions. “It is enforcement elicit intelligently, not knowingly, Tuttle did enforcement that sus fact of life for law voluntarily waive his Miranda readily do not often vol pected criminals incriminating evidence.” unteer State ZINTER, (concurring in part Justice Frazier, ¶ 23, 2001 SD 622 N.W.2d dissenting part). ruling, law en 256. Under this. Cоurt’s from forcement officers will be forbidden concur, portion except I for any consequences, uttering words which Issue C concludes a defendant’s confession will become fear involuntary. majority admission involuntary. they But are also forbidden involuntary the admission because it finds information that cause to withhold Openhowski concludes Detective used unknowing defendant’s confession to be a “coercive” “threat” to overbear Tuttle’s and, 22” involuntary. This again, “catch ¶ speak. will to not 25-32. I Supra limit law severely will enforce position join in Justice Chief Gilbertson’s dissent capabilities solving In ment crimes. express on that conclusion. I write also deed, we are to take my videotape that: more than views ruling Malloy to its most Court’s supports the trial court’s find- adequately conclusion, this Court literal as advocates admission, voluntary ing majority of a today, plea bargains even uncon has far from inferred too much the 18 See stitutional. detective, and the used ma- words 1493, 12L.Ed.2d at 659. apply to jority’s authorities should not I Accordingly, dissent. case. join special writing I also 44.] [¶ Preliminarily, it should noted 48.] Zinter. Justice majority incorrectly concludes SABERS, part (concurring Justice that the trial court did not address the dissenting part). and of question of the voluntariness except I statements; concur that I would rather, [¶ 45.] “conelusory in a hold that has not a proven also the State ruled that Tuttle’s fashion” statements valid waiver of defendant’s Miranda ¶ In voluntary. Supra point at 29. fact, suppres- of trial court a the conducted majority in the As indicated [¶ 46.] hearing sion and then a of (1) finding recited opinion, the “State must show that the supported fact that denial of the mo- its relinquishment of the defendant’s (2) voluntary the defendant was tion. and sup- court the statement. The majority The trial denied declares that the “at it (1) motion because that pression found detective’s statement sent Tuttle an times the defendant expressed all a will- (2) message,” “unmistakable that would desire, ingness, to talk to the even “discourage any leniency,” “meaning” added). (emphasis happened.” about what that Tuttle “would likely suffer more se- a de of Although we conduct novo review ¶ verely for not confessing.” Supra at 29. voluntariness, this the ultimate issue majority The also that declares “[t]he mes- place certain finding that at a time and if sage was clear: failed to cooper- Tuttle suspect actually expressed “willing- this pay ate consequences; he would the he ness, to talk police” even a desire to the Supra favorably.” would treated less subsidiary finding to which we should ¶ I do agree 30. not that all of these accord deference.14 can reasonably deductions inferred Moreover, the trial court’s sub- statement, from officer’s the especially sidiary supported by well finding is responses not from Tuttle’s demeanor and A re- videotape of the entire interview. videotape. that are reflected on the videotape clearly of the reflects view short It repeating bears that 52.] the 18 that after Tuttle waived his Miranda issue any rights, expressed he words at are the detective’s never reservation state- ment, speaking with the detective. gonna about On “I’m have write it up fully and contrary, freely conversed you’re cooperating, you’re being not a real minutes, for several tell- ¶ with the detective jerk about it.” Supra 25. In my ing several of the versions incident before context, when judgment, viewed in one gave he the majority suppress- version cannot from language divine this the ma- es. jority’s message” “unmistakable view, report “discourage detective’s my majority simply any further, leniency,” infers far tоo much from the detective’s this meant ¶ (SDCL majority opinion ("Although See 20 juxy of the the civil rules in selection 14. 23A-19-1, subsidiary 23A-20-1), questions §§ there are evidentiary often deference, factual mat- deserving (SDCL 23A-22-2), the voluntariness of a implicitly ters in all ultimately legal question.”) confession is other criminal matters the civil are rules Fenton, (citing SDCL, Miller v. not inconsistent with Title 23A. 452-53, 106 S.Ct. 414- SDCL 23A-45-13. Because Civil Rule 15). majority fails to (SDCL consider this sub- 52(a) 15-6-52(a)), governing find- sidiary light finding in a most favorable law, ings fact and conclusions of is not Anderson, required trial court as in State v. rules, pro- inconsistent with the criminal ¶ 2000 SD 608 N.W.2d guidance vides here. Under 52(a), amendments of Civil Rule we no Furthermore, required deference longer apply simply de novo review because changed by the fact the trial court’s findings documentary of fact are based findings upon docu- were based oral and require (a evidence. The 2000 amendments mentary videotape evidence inter- of the fact, “findings upon whether based testimony). view and the detective’s live As evidence, notes, documentary oral or not be majority expressed we have often erroneous, clearly set aside unless and due preference findings our of fact con- regard given opportunity shall be to the supra clusions criminal of law in cases. See n.ll, judge credibility the trial court to Flegel, and State 485 N.W.2d Id., (S.D.1992). § ch Although witnesses.” SL 1. This the Rules of here, (SDCL, 23A) especially where Criminal have is true the trial Procedure Title explicit findings finding provision governing no of court's critical was based on the law, videotape testimony fact of and conclusions the Rules of and the detective's oral explicitly incorporate suppression hearing. Criminal Procedure at the 40 Hanison, Brommel, and Mat not severely [¶ 55.] more suffer

“Tuttle would factually distinguishable are because thews confessing.” non-cooper all threats to use they involved ' must also be remembered It 53.] that would judge the or court ation is not whether the question that “[t]he the de ultimately guilt find and sentence the cause were statements interrogators’ example, Brommel involved fendant. For confession[,] but whether two to by teams of questioning” “extensive or coer manipulative were so statements period over a of six hours. five officers his defendant] of they deprived [a that cive 909, the During 364 P.2d at 846. Cal.Rptr. unrestrained, autono an ability to make interrogation, that extensive course of v. Ow to confess.” State mous decision made to moti promises lеniency ¶ 735, 52, ens, 42, 643 N.W.2d 2002 SD spe confession. Id. at 847. The vate the State v. original) (quoting (emphasis police threats statements involved cific ¶ 8, 515, Smith, 573 N.W.2d SD that the reports would reflect that their 517). weighs ex majority Although consequent a “liar” and that accused was finding against for and trinsic elements leniency from the ly, “expect he could no voluntariness, give fails to sufficient it added). (emphasis Id. at 848 court.” of the conver the entire context weight to Hanison, police rhetori- demeanor unequivocal sation and Tuttle’s they' might inform cally suggested that voluntary participation depicts that had not “the court” that the defendant closer interview. Those throughout this at 891. This was the cooperated. F.3d reveal that under contextual considerations controlling opinion fact in the because circumstances, Appeals specifically 9th Circuit Court of capable resisting pressure fully was “improper conduct was the noted that the voluntarily talking. They also reveal was police] might inform suggestion [the at issue was that the officer’s statement had not defendant] the court [the police activity, Connelly, not “coercive” fact, cooperated.” Id. In the court noted at at at “only the defendant broke her silence Haynes, that overbore Tuttle’s will. defen- agent [the asked whether after the 513-14, 83 S.Ct. at judge if thought preferable it dant] L.Ed.2d 520-21. had [the defendant] were informed that cooperated,” or not and the cooperated majority’s reliance Finally, responded thought “that she defendant Brommel, Tingle, 658 F.2d on agents to the would be better she talked 845, Cal.Rptr. 909 364 P.2d Cal.2d had they judge she informed Harrison, (1961), 34 F.3d and Mat- added). (emphasis cooperated.” Id. thews, factually legally 52 is 601 So.2d Tingle factually inapposite misplaced. even more Matthews involved ac- premised case, because that case conduct. In that after the egregious “improper influence” knowledged by the police made the statement cited young (“I mother of threatening deprive can and tell the dis- majority go back cooperation. cooperated child in order to illicit attorney [defendant] her trict misconduct, That which go 658 F.2d at 1336. or I can back and tell the district me “sob,” “noticeably cooper- Tingle attorney did [defendant] caused me.”), shak[e],” went further and cry to continue to for at least ate with .... you cut a deal might “[w]e in stated that confessing, 10 minutes before absent you.” make a lot of difference for it could case. Id. at 1334. 41 police “judge” Cal.Rptr.2d at (stating The then concluded 10 that “[i]t is well coop- know if the defendant failed to would settled that a confession involuntary is and Matthews, 601 So.2d at 52-53. erate. therefore inadmissible if it was by elicited any promise of leniency benefit or whether Brommel, Thus, Tingle, Harri- [¶ 58.] (citation express implied”) or omitted); all and Matthews involved different son I, 5 Cahill Cal.4th at 853 P.2d at police questioning clearly improper where Cal.Rptr.2d 20 at (reviewing the Cali- a suspect’s right threats were made use fornia cases applying per rule of remain Those involved this se silent. threats if taking away any promise from exclusion benefit children their mother or of or le- improper of the right niency expressed use to remain implied). or by the or court judge silent that would 9th Ap- Circuit Court of sentencing judging the accused. peals and Alabama decisions are no differ- beyond These far go cases Detective’s Harrison, ent. See 34 F.3d at 891 (stating Openhowski’s explanation accurate “there are no in circumstances which law possible police possible was limited to or enforcement may suggest' officers that a prosecutorial consequences cooperation suspect’s exercise to remain non-cooperation. silent result in harsher treatment addition these factual dis- prosecutor”) a (emphasis court or original); Brommel, tinctions, Harrison, and Mat- Matthews, 601 So.2d at “in (stating inapposite are legally thews because those order to be admissible a confession must apply much more exclu- courts restrictive be free and voluntary and cannot be the sionary Although professing to rules.15 any implied result of promises, direct or apply the rule totality of circumstances slight”) however in (emphasis original). general, apply in courts actually these hand, On the other South Dako- per form of a se rule of some exclusion ta “totality utilizes the circum- type example, of case. For Brommel analysis stances” rather than one of these reveals that follows a re- California more Frazier, per rules of se exclusion. “any promise” rule which strictive under ¶ 20, SD 19 at at accused, N.W.2d 255. Conse- “leniency advantage or for the our quently, permitted cases have some motivating ... cause16 of the confes- sion,” degree long resulting of threat as as the involuntary. makes confеssion Cal.Rptr. P.2d voluntary at 846-47. See statement was under the II, Cal.App.4th also Cahill 28 of the circumstances.17 Because of these 15.Tingle precedential also has no value here 16. We do not follow this "but for” causation Owens, ¶ 52, analysis. 42 at 2002 SD Appeals because tire 9th Circuit Court of (stating question N.W.2d "[t]he merely commented in a footnote that "dis interrogators' not whether statements . approved” informing suspect a fail confession, were cause of the whether cooperate ure to to a communicated manipulative those statements were so or co- prosecutor. court 658 F.2d n.5. The they deprived ercive that of his [a defendant] not, however, factually did hold that the cor unrestrained, ability to make an autonomous rect improper statements as a involved also, ¶ confess.”). supra decision See at 23. any matter of law. It did not also cite author ity supporting "disapproval." its We have example, Lyons, N.W.2d For disapproved also of such conduct but never suspect officer interviewed a in a rob- permitted theless use of the statement if vol defendant, According bery. to the the officer untary totality of under the the circumstances. threatened since the defendant and his (S.D. Lyons, match, See State v. 269 N.W.2d 124 wife’s stories did not "that ... I was 1978), infra, getting ‍‌​‌​​‌‌‌​‌​‌​‌‌​‌‌‌​​​‌‌‌‌‌​‌‌‌‌​‌‌​‌​​‌​‌​​​‌​​‍deeper deeper just discussed in footnote 17. either jurisprudence in and because the 5th Amendment to remain

differences si- ¶ However, Supra at lent.” 32. “both in police of the differences statements types simply are statements different Brommel, issue, Tingle, Harrison and at your same rights sides of the coin: ‘waive have no application Matthews here. and receive more treatment’ favorable ver- finally It noted should be there your ‘exercise and receive sus less ” Harrison, police prosecutors no doubt favorable treatment.’ F.3d is distinction, my this judgment, non-cooperation cooperation consider or by the and the 9th majority used Circuit (and in routinely permissibly) making Appeals, play Court of is a on words that simply prosecutorial decisions. This a few, any, suspects will discern. Either also, life. fact of See the authorities cited in way suspect custody only interested dissent, su- Chief Justice Gilbertson’s receiving treatment. best Conse- ¶41. Unfortunately, under pra, this quently, distinction means little and decision, neg- language majority any further than will add confusion rather fur- police prosecutorial or consequence ative suspects ther information who should non-cooperation is now barred from dis- an or speak make informed decision to suspect. Consequently, closure to a speak. majority opinion actually will a sus- hinder analysis, In the final this video- informed, pect’s ability fully make shows that tape voluntarily Tuttle was knowledgeable intelligent decision: a speaking throughout with the detective knowing decision includes how their interview. I would affirm Consequently, cooperation non-cooperation or may be the trial court. police by prosecutor used exer- cising prosecutorial duty. their majority attempts to side-

step this undesirable result permitting suspect cooperation to “tell passed on authorities will be to the leniency, increase the likelihood of threatening prosecutor inform the ... suspect’s cooperate refusal violates worse, threat, things making type and then of indirect we [the nevertheless looked officer] talking my getting started about wife arrest- at the circumstances and held thereafter, Shortly ed.” Id. 125-126. the officer's render threats did not robbery. involuntary defendant confessed to the Al- defendant’s in that confession Tingle though upon” like Id. at 126. "frowned case.

Case Details

Case Name: State v. Tuttle

Court Name: South Dakota Supreme Court

Date Published: Jul 31, 2002

Citation: 650 N.W.2d 20

Docket Number: None

Court Abbreviation: S.D.